A storm of protest has arisen over recent days following reports that Clearcast has refused clearance for a Christmas TV commercial by Iceland, the supermarket chain, highlighting the plight of the orang-utan and linked to the company's decision not to stock products containing palm oil. The commercial itself is a based on an animated film that has been on the Greenpeace website for some months and highlights the link between the destruction of the rain forests and the production of palm oil.
So why on earth would the perfectly nice people at Clearcast object to such a worthy cause as saving the orang-utan? Because unfortunately, the law does not leave them very much room for manoeuvre.
The BCAP Code prohibits "political advertising" on TV. A political ad is defined as (a) an ad which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature; (b) an advertisement which is directed towards a political end; or (c) an advertisement which has a connection with an industrial dispute.
So what are "political objectives" or "ends"? The Code contains a long list, which includes influencing government and public policy, both in the UK and abroad, as well as "influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy".
Clearcast's Managing Director, Chris Mundy, has issued a statement today explaining that because the ad is based on material created by Greenpeace and promoted on its' website for some time, Greenpeace would need to demonstrate they are not a political advertiser as defined by the Code. A visit to the Greenpeace website makes clear that the organisation is caught by that definition, hence the ban.
So the key question is whether that link with Greenpeace's pre-existing material means that Iceland was acting on behalf of a political advertiser? Or was this simply an ad by a commercial organisation, highlighting an environmental issue in order to obtain a competitive advantage, rather than trying to influence government policy or influence public opinion on a matter of public controversy? After all, is there anyone out there that doesn't love the orang-utan? What's controversial about that? It does seem to be clear that if the animation had not previously been used by Greenpeace, it would probably have been approved for broadcast.
Meanwhile, the Twitter-sphere is full of cynics accusing Iceland of deliberately trying to drum up PR by submitting an ad to Clearcast that it knew would not be cleared. We do not believe that is the case and our understanding is that Iceland was acting in good faith. And to be fair, so were Clearcast, who have applied the Code in a way that is not unreasonable. Given that the Code itself is a reflection of the Communications Act 2003, as well as European law, neither Clearcast or the broadcasters had a great deal of latitude. So no, Iceland have not made a monkey of Clearcast.
The underlying problem is one that we wrote about last week concerning the anomalous status of Clearcast. Chris Mundy's statement expressly says "Clearcast isn't a regulator", which is consistent with the finding of the High Court when Diomed applied for Judicial Review in 2016. However, this means that there is no legal way to challenge Clearcast's decision that Iceland's ad is tainted by its association with Greenpeace.
And that certainly is a matter of public controversy.
Because the ad is based on material made by Greenpeace and has been promoted on the Greenpeace website for some time, Greenpeace need to demonstrate they are not a political advertiser as defined by the Code before Clearcast can approve the ad.